( 1 ) THIS appeal is directed against the judgment, dated 4-3-1996 rendered in SCNo. 112 of 1995 on the of the learned Sessions Judge, Vizianagaram convicting the accused-appellant for an offence punishable U/s 304, Part-11 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 1000. 00 and in default to undergo simple imprisonment for a period of six months.

( 2 ) THE facts relating to this appeal may briefly be stated as follows:the deceased, Thothadi Bangarayya, is the brother of the accused. They purchased the land to be used as threshing floor in the Gollupalam village from Thothadi Narinaidu, PW5. As there were some disputes in respect of the land, it was partitioned with the help of the elders Gollu Appalanaidu, PW6 and Thothadi Krishna, PW7 and the land came to be in their seperate possession as per their respective shares. They used to keep the manure in seperate heaps on their respective shares. On 17-4-1995 in the early hours Thoihadi Ywrinaidu, PW1, the son of the deceased, went to their manure liecp and loaded the manure in a bullock cart and took it to their field and dumped the manure there. He and his younger sister, Thothadi Ramu, PW2, went to the said manure heep at about 6-00 a. m. They saw the accused abusing the deceased in a filthy language as to why he was driving the cart over his manure heap. The deceased reprimanded the accused for abusing him and said that they are taking their own manure. Then the accused pounced upon the deceased to fight with him. in the meanwhile the deceased hit the accused with a stone on his right check causing some minor injuries. Upon (his the accused attacked the deceased with a spade (M. O. 1 ). The deceased fell down on the ground. The accused beat the deceased with the same spade thrice on both sides of his chest. P\v2 raised hue and cry. The accused then left the place. The deceased was shifted in a bullock cart to Bondapalli police station, where the Sub-Inspector of Police, PW11 recorded his statement in Ex. Pl and issued FIR, Lx. P7. From there the deceased was taken to Government Hospital, Gajapathinagaram, but he died on the way at about 8-40 a. m. on the same day.

( 3 ) ON receiving this information of the death of the deceased an altered FIR in Rx. PS was issued by PWI1 under Section 302, 1pc. Thereafter PW12, Sub-Inspector of Police, took up the investigation, visited the scene of offence and prepared the observation report in the presence of the mediators Go/hi Satyanarayana, P\v8 and another. He seized the blood stained earth, control earth and blood stained spade from the scene of offence. He prepared a sketch of scene of offence in Ex. P9. He also went to the hospital, and conducted inquest over the dead body of the deceased at about 1-30 p. m. in the presence of PW8 and four others. He sent the incriminating articles to the Forensic Science Laboratory for analysis. PW10, S. Chandrasekharam, Inspector of Police, received the report of the analyst in Ex. P6. After inquest post-mortem examination was conducted by Dr. P. Sravan Kumar, PW9, who prepared the post-mortem report, Ex. P4. The accused was also referred to the Government Hospital for examination and he was examined by PW9, who issued the wound certificate relating to the accused under Ex. P5. Later PW10 filed the charge-sheet. A charge for the offence punishable under Section 302, IPC was framed against the accused. PWs 1 to 12 have been examined and Exs. Pl to P9 and MOs. 1 to 4 have been marked on behalf of the prosecution. The accused has not chosen to examine any defence witnesses on his behalf. When questioned as to the commission of offence, the plea of the accused was one of total denial.

( 4 ) ON this evidence the learned Sessions Judge held that the charge under Section 302, IPC was not made out, but as sialed above, convicted the accused for an offence under Section 304, Part-II, IPC and imposed sentence of